United States Court of Appeals

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted January 21, 2020*

Decided January 23, 2020 

Before 

FRANK H. EASTERBROOK, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge 

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-2484 

SALIH BAKER, 

Plaintiff-Appellant, 

v. 

JOHN FERMON and CITY OF 

BLOOMINGTON, ILLINOIS, 

 Defendants-Appellees. 

 

Appeal from the United States District 

Court for the Central District of Illinois. 

No. 16-cv-1358 

Joe Billy McDade, 

Judge. 

O R D E R 

After a police officer thought that Salih Baker swallowed a small bag of drugs, he 

arrested Baker. A judge ordered that probable cause justified detaining Baker without 

bond for obstruction of justice, and later a grand jury indicted Baker on that charge. A 

doctor reported that it could take up to a week for the bag to pass from Baker’s system. 

After a week in an observation cell at the jail, no bag was recovered, and Baker was 

 

*

 We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 18-2484 Page 2 

released from observation, though he remained in jail on unrelated charges. He now 

sues the officer and his employer under 42 U.S.C. § 1983 for an unreasonable search and 

seizure in violation of the Fourth Amendment and malicious prosecution under Illinois 

law. The district court entered summary judgment for defendants. The officer had 

probable cause to arrest Baker, qualified immunity blocks any claim about later 

detention, and the indictment defeats the malicious-prosecution claim. Thus, we affirm. 

Baker was a passenger in a car stopped on September 27, 2014 around 2:30 a.m. 

by John Fermon, a Bloomington, Illinois, police officer. (Baker does not contest the 

validity of the car stop.) At this stage, we construe in Baker’s favor the evidence of the 

events that followed. See Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). Fermon noticed 

Baker—whom he had recently arrested for possessing cocaine—in the back. He radioed 

Officer Steve Statz to ask him to bring a police dog to “sniff” the car for drugs. Statz and 

his canine arrived shortly thereafter. 

As Fermon told the occupants to leave the car for the dog sniff, he noticed an 

open bottle of tequila on the floor in front of Baker and that Baker was clenching his 

right hand closed. Fermon thought that Baker was clenching a plastic bag containing a 

white, powdery substance. Baker denies clenching a bag (and we accept his denial), but 

he does not dispute that he was clenching his hand shut. Once Baker left the car, he 

moved his clenched hand across his face. Statz told Fermon that he thought he saw 

Baker swallow something. (A passenger heard this exchange.) The officers searched 

Baker and the surrounding area but found nothing, so Fermon believed that Baker had 

swallowed a bag of cocaine from his clenched hand. Fermon then arrested Baker for the 

illegal transport of alcohol and took him to the county jail. 

Concerned that Baker had swallowed cocaine, jail officials instructed Fermon to 

take Baker to the hospital, where a doctor gave Baker a charcoal solution and sorbitol—

charcoal neutralizes toxic substances and sorbitol flushes the digestive system. The 

doctor also ordered an x-ray to look for a bag in Baker’s abdomen. Although Baker 

insisted that he did not swallow anything, he drank the solutions voluntarily and 

consented to the x-ray to prove his contention. Baker did not pass a plastic bag during 

his four hours at the hospital, and the x-ray showed no foreign objects. Nonetheless, the 

doctor explained that he could not rule out the risk that Baker had swallowed a bag of 

cocaine, which could take up to a week to pass. Fermon took Baker back to the jail, 

where Fermon completed his report about the arrest. Jail staff monitored Baker for a 
No. 18-2484 Page 3 

week, but when no bag was recovered, they released him from observation, though he 

remained in custody on charges unchallenged in this suit. 

Meanwhile, a state prosecutor took legal action. When Baker left the hospital and 

returned to police custody, a prosecutor presented Fermon’s arrest report to a judge. 

The report stated that Baker had held a “plastic baggie containing a white powdery 

substance,” put the bag “into his mouth,” and then “swallow[ed] it.” The judge signed 

an order finding “probable cause to detain” Baker in lieu of bond “for the charge(s) of: 

obstruction/destroy evidence.” After Baker’s week under observation, the prosecutor 

presented Fermon’s report to a grand jury, which indicted Baker for obstruction. The 

indictment remained pending for two years. In 2016, the prosecutor moved to dismiss 

the charge in exchange for Baker’s guilty pleas in unrelated cases. Baker objected to the 

motion. He argued that the charge of obstruction was baseless, and he wanted a chance 

to prevail at trial. A state judge granted the motion to dismiss the charge. 

Baker’s next step was this suit, which contains two claims. First, Baker argues 

that, by arresting, searching, and detaining him for the cocaine, Fermon violated his 

Fourth Amendment rights. Second, Baker argues that, by preparing a police report 

falsely stating that he had ingested a bag of cocaine, Fermon (and his employer, the City 

of Bloomington) committed the state-law tort of malicious prosecution. The district 

court entered summary judgment for the defendants. It ruled that Fermon was entitled 

to qualified immunity because he had arguable probable cause to arrest, search, and 

detain Baker. The court also concluded that the dismissal of the prosecution did not by 

itself establish that the prosecution had been malicious. 

On appeal, Baker raises three arguments under the Fourth Amendment. First, he 

contends that Fermon lacked probable cause to arrest him because Baker never had any 

cocaine. An officer has probable cause to arrest if the officer reasonably believes that the 

arrestee is committing a crime. Abbott v. Sangamon Cty., 705 F.3d 706, 714 (7th Cir. 2013). 

Several facts support that belief here. First, Fermon saw that Baker had an open bottle of 

liquor in front of him in the car, a violation of state law. See 625 ILCS 5/11-502. That 

observation alone supplied an objective basis for the arrest. See Atwater v. City of Lago 

Vista, 532 U.S. 318, 354 (2001). But an arrest based on the probable obstruction of justice 

was also valid. Fermon honestly thought that Baker’s right hand was clenching a bag of 

cocaine (we explain later why no evidence undercuts the honesty of Fermon's belief); he 

had recently arrested Baker for possessing cocaine; and when Baker moved his hand to 

his face, Fermon thought that Baker swallowed the bag. Even though Baker denies 
No. 18-2484 Page 4 

doing so, and no bag was ever found, probable cause is assessed by what the police 

officer honestly and reasonably observed, not later events, and those observations were 

sufficient. See Abbott, 705 F.3d at 714. 

Second, Baker argues that Fermon violated the Fourth Amendment by forcing 

him to undergo an unreasonable search. He objects to the medical procedures used at 

the hospital to determine if he had swallowed a bag of cocaine. Compelling a suspect to 

undergo an intrusive, unwanted medical procedure in order to obtain evidence may 

violate the Fourth Amendment. United States v. Husband, 226 F.3d 626, 632–33 (7th Cir. 

2000). But Baker’s claim fails because Fermon did not force any procedures upon Baker. 

Baker concedes that he voluntarily drank the charcoal and sorbitol solutions, and 

agreed to an x-ray, in an attempt to prove his innocence. 

Third, Baker argues that Fermon unreasonably detained him after the hospital 

visit. He contends that, even if Fermon initially arrested Baker on a belief that Baker had 

ingested a bag of cocaine, that belief lacked probable cause once Baker failed to pass the 

bag at the hospital and the x-ray detected no bag. But when a detention lacks probable 

cause, “arguable probable cause” will shield an officer from suit through qualified 

immunity if, under the same circumstances and well-established law, a reasonable 

officer could have found probable cause. Huff v. Reichert, 744 F.3d 999, 1007 (7th Cir. 

2014). Arguable probable cause exists here. After the hospital visit, a judge found 

probable cause to detain Baker, without bond, for obstruction of justice. See Leaver v. 

Shortess, 844 F.3d 665, 670 (7th Cir. 2016). An “extended restraint of liberty following 

arrest” based on “a judicial determination of probable cause” complies with the Fourth 

Amendment. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). And the grand jury’s indictment 

further justified the detention after the week of observation ended. See id. at 117 n.19. 

Fermon is thus amply shielded from suit. 

Baker has two replies, but neither persuades us. First, he argues that Fermon’s 

police report to the judge did not include the results of the hospital visit. Yet those 

results were inconclusive: The hospital’s doctor testified that the x-ray results did not 

negate the possibility that Baker swallowed a bag and it could take up to a week to 

pass. Thus, Fermon “can claim the protection of qualified immunity” because “it would 

not have been clear to a reasonable officer that the information . . . omitted from his 

police reports would have negated probable cause.” Leaver, 844 F.3d at 670. 
No. 18-2484 Page 5 

Second, Baker argues that, because the failure to recover any cocaine confirms 

that he never had it, Fermon must have lied in his report and is thus culpable. This 

argument applies to both his detention claim and his final claim, the Illinois tort of 

malicious prosecution. That latter claim requires evidence that Fermon maliciously 

started a prosecution without probable cause. See Cairel v. Alderden, 821 F.3d 823, 834 

(7th Cir. 2016) (citing Sang Ken Kim v. City of Chicago, 858 N.E. 2d 569, 574 (Ill. App. Ct. 

2006)). But, just as a judge’s finding of probable cause can defeat a Fourth Amendment 

claim of unreasonable detention, a grand jury’s indictment typically defeats a claim of 

malicious prosecution. Colbert v. City of Chicago, 851 F.3d 649, 655 (7th Cir. 2017). To 

overcome the effect of the indictment, Baker must show that some improper “postarrest 

action . . . influenced the prosecutor’s decision to indict,” such as a lie. Snodderly v. 

R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 902 (7th Cir. 2001). Likewise, to 

overcome the judge’s probable-cause finding, Baker needs evidence that Fermon lied to 

obtain that finding. See Manuel v. City of Joliet, 137 S. Ct. 911, 918–19 (2017). 

 Baker’s evidence that, with the benefit of hindsight, he never possessed the bag 

of cocaine, is not evidence that Fermon lied about reporting that he saw one. At most, it 

is evidence that Fermon was mistaken about what he saw. But a mistake is not a lie, as 

we have often said in another context. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 

(7th Cir. 2006) (employment discharge). And Baker has no evidence, such as shifting or 

inconsistent statements from Fermon, that might reasonably suggest that Fermon lied. 

See Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737–40 (7th Cir. 2013). To the contrary, 

the evidence is consistent. Fermon wrote initial and supplemental arrest reports, and 

they both state that Baker put a bag with a white powdery substance into his mouth 

from his clenched right hand. Further corroborating Fermon’s account, a passenger 

recalls that, during the arrest, Statz said that he saw Baker put something in his mouth. 

With no evidence suggesting that Fermon fabricated his account, summary judgment 

was thus proper on the detention and malicious-prosecution claims. 

 AFFIRMED